Wake up call for judicary

Advocate

wake-up call for the judiciary

 

 INTRODUCTION

 

Now a days Indian judiciary is facing threat from two side. one is ,first time in the history of Indian judiciary issued contempt notice against any sitting Judge Justice S C Karnan, Judge of Calcutta high court facing a notice from the Supreme Court in a contempt case, has lashed out at the apex court, accusing it of harbouring a caste bias against him. In defiance of the SC's decision and sharply escalating the confrontation with the apex court, Karnan accused the CJI J S Khehar-led seven-judge bench of upper caste bias in initiating proceedings as he belonged to the Dalit community .Karnan virtually alleged that the court order amounts to an offence under the law to punish atrocities against Dalits and tribals and challenged the court to refer his case to Parliament.[1]

 Secondaly, The Supreme Court has made it very risky for any organisation to publish a survey on alleged corruption in lower judiciary , saying the law permitted one or many trial courts to make a reference to a high court for launching contempt proceedings against those responsible for the embarrassing the judicial system. This ruling came in an 11year-old case filed by Transparency International India (TII) and the Centre for Media Studies (CMC) which, along with their top management, were asked by a magistrate in Kangan in J&K to show cause in May 2006 why contempt of court proceedings or action under criminal defamation provisions of Ranbir Penal Code be not initiated against them. The notice was issued by the magistrate taking objection to an article in `Greater Kashmir' daily , which had quoted a survey conducted by CMS and published by TII on “rampant corruption“ in the subordinate judiciary . But neither TII nor CMS representatives appeared before the magistrate, which later in 2006 issued bailable arrest warrants against their top management.The warrants were stayed by the SC in 2006 itself. Latter on, a bench of Chief Justice J S Khehar and Justices D Y Chandrachud and Sanjay K Kaul[2] rejected senior advocate Jayant Bhushan's argument that the survey was conducted by asking litigants about their experience in court.[3]

CONTEMPT OF COURT

In defiance of the SC's decision and sharply escalating the confrontation with the apex court, Karnan accused the CJI J S Khehar-led seven-judge bench of uppercaste bias in initiating proceedings as he belonged to the Dalit community .Karnan virtually alleged that the court order amounts to an offence under the law to punish atrocities against Dalits and tribals and challenged the court to refer his case to Parliament.

He said: “The suo motu order against me, a Dalit judge, is unethical and goes against the SC and ST (Prevention of) Atrocities Act. It is certainly a national issue and a wise decision would be to refer the issue to the House of Parliament.“ The judge argued that since the order against him was “harsh“, the contempt case should be heard after CJI Khehar retired or placed before Parliament if this was not possible.

In his anxiety to respond to the SC's February 8 judicial order, Karnan addressed a four-page letter to the SC's registrar general, a post that no longer exists as it was re-designated years ago as secretary general. Karnan, who has been at the centre of several controversies, was issued a notice and asked to present himself in the Supreme Court on February 13 to explain “scurrilous“ allegations against sitting and former judges.

In response to the apex apex court's contempt proceedings, Justice Karnan said: “The suo motu petition is not maintainable against a sitting judge of the HC... I have sent representations to various government authorities regarding high irregularities and illegalities occurring at the judicial courts. I am also a responsible judge to control such high irregularities, especially corruption and malpractice. I have furnished comprehensive proof of unethical practices happening with the respective courts[4]

Calcutta high court's Justice C S Karnan did not appear before a seven-judge constitution bench headed by Chief Justice J S Khehar on Monday in defiance of the summons issued by the Supreme Court which has initiated suo motu contempt of court proceedings against him.This cold shouldering of the highest court's summons by a sitting HC judge made attorney general Mukul Rohatgi request the bench comprising Justices Khehar, Dipak Misra, J Chelameswar, Ranjan Gogoi, Madan B Lokur, P C Ghose and Kurian Joseph to frame contempt of court charges in absentia against Justice Karnan.The bench was disinclined to frame charges without hearing Justice Karnan, more importantly to secure his presence before it. For any ordinary citizen, the court might have directed the police to arrest and produce him before the court. But the contemnor being a sitting HC judge, the SC decided to give him another chance to abide by the apex court's order and present himself before it on March 10. “Justice Karnan is directed  to be present in court in person on the next date of hearing (March 10),“ the bench ordered and hinted that it would not back out from taking coercive methods to secure his presence if he failed to appear on the next date of hearing.

Two days after a contempt notice was issued to him, Justice Karnan had on February 10 written a four-page letter to the SC reiterating his charges against judges in Madras high court, seeking transfer of the contempt case to Parliament and complaining that the apex court did not give him enough time to respond. He also alleged that upper caste bias among the seven-judge bench to punish a Dalit like him was evident from the order which could itself be an offence under SC and ST (Prevention of Atrocities) Act. Appearing for Madras HC, senior advocate K K Venugopal said the reputation of sitting and retired judges, who were attacked by Justice Karnan with wild aspersions on their integrity and character, needed protection. He said Justice Karnan had accused a sitting judge of s*xual assault and worse, he called up the home of the sitting judge and verbally abused his family members.

The CJI-headed bench said, “Justice Karanan is being proceeded against in the suo motu contempt case. We had given him notice and he has been served. He has not appeared before us. For the time being, we think we should give him one more chance because the consequences are grave. When he appears on the next date, we will ask him certain questions and seek answers. We will give him time to appear and show cause why contempt proceedings be not initiated (for his conduct). If he does not appear, then we may consider issuing bailable (arrest) warrants.“[5]

A body of lawyers led by Mathew Nedumpara tried to intervene in the contempt proceedings and requested the CJI-led bench to be sympathetic towards a “stressed, disturbed and financially constrained“ Justice Karnan. He was joined by advocate Lily Thomas. But the bench sternly put down their requests and said none of them had been authorised by Justice Karnan to argue on his behalf. It said no advocate could intervene in the contempt proceedings unless duly authorised either by the contemnor or the court.

“Since contempt proceedings are a matter strictly between the court and the alleged contemnor, anyone who enters appearance and disrupts the proceedings of this case in future should understand that he she can be proceeded against in consonance with law. All that we need to say is that no one should appear in the matter without due consent and authorisation,“ the bench warned.

 

CORRUPTION

The Supreme Court has made it very risky for any organization to publish a survey on alleged corruption in lower judiciary , saying the law permitted one or many trial courts to make a reference to a high court for launching contempt proceedings against those responsible for the embarrassing findings. [6]This ruling came in an 11year-old case filed by Transparency International India (TII) and the Centre for Media Studies (CMC) which, along with their top management, were asked by a magistrate in Kangan in J&K to show cause in May 2006 why contempt of court proceedings or action under criminal defamation provisions of Ranbir Penal Code be not initiated against them.

The notice was issued by the magistrate taking objection to an article in `Greater Kashmir' daily , which had quoted a survey conducted by CMS and published by TII on “rampant corruption“ in the subordinate judiciary . But neither TII nor CMS representatives appeared before the magistrate, which later in 2006 issued bail able arrest warrants against their top management. The warrants were stayed by the SC in 2006 itself. Latter on, a bench of Chief Justice J S Khehar and Justices D Y Chandrachud and Sanjay K Kaul rejected senior advocate Jayant Bhushan's argument that the survey was conducted by asking litigants about their experience in court. [7]One of the most frequently used words in India, corruption signifies a range of things. In 2005, Transparency International and Delhi based Centre for Media Studies, a research firm, undertook the India Corruption Study. The survey covered 14,405 respondents over 20 states and included interviews with service providers and users (of these services). The results, published the same year said Indians pay out around Rs 21,068 crore as bribes while availing one of 11 public services. While some of the results of the survey were published, many of the details were not. The study, however, remains the most recent and the most comprehensive report on corruption in India. Apart from calculating the extent of corruption, in Rs crore, it explains the mechanics of it.

 

Corruption in Indian judiciary is considered pervasive: over 45% of Indians believe the judiciary is corrupt, a view shared by external assessments. Not only is corruption rampant in the lower courts, some have alleged that this corruption reaches the highest levels. In 2010, a former Law Minister declared that eight of sixteen former Chief Justices of India (CJI) were corrupt, and in 2014 a former Supreme Court judge alleged that three former CJIs made “improper compromises” to let a corrupt High Court judge continue in office. Sadly, the Indian judiciary has shown a predilection to treat every call from the executive or the legislature for greater judicial accountability as an attack on the judiciary’s independence. That concern is not altogether unreasonable given the terse history of power battles among the three branches, but it increasingly rings hollow, given the rising reports of corruption in judiciary’s ranks .

Indian judges may be nowhere near as corrupt as its politicians; but Indian judiciary, like its counterparts elsewhere, relies on its reputation for fairness, impartiality, and incorruptibility. The courts can scarcely afford any loss of public faith. Hence, it must have been a wake-up call for the judiciary to face wavering public support as it battled the[8] executive and legislature during 2014-15 on the National Judicial Accountability Commission Act (NJAC), which sought to expand executive’s say in judicial appointments and make them more transparent. When the Supreme Court finally struck down NJAC in October 2015, citing the need for absolute judicial independence, the judgment was met with both veiled skepticism and open criticism. Although the current appointment system (in which judges appoint their successors) has been relatively free of corruption allegations, the NJAC debate brought forth long simmering concerns of judicial corruption and worries that even judicial appointment was not above suspicion.

How has this come to pass? Why is public confidence in the integrity of the Indian judiciary eroding? Four main issues need addressing in the context of India’s judicial corruption:

  • Corruption in lower courts: India’s judicial corruption is a cancer that begins at the lower levels and inches its way up. Spanning 600 district courts and hundreds of subordinate courts, the heterogeneous lower judiciary acts as the primary interface between Indian judiciary and its common citizens. In 2013, 36% citizens reported paying a bribe to the judiciary, a sad reality validated by many senior judges themselves. A 2007 survey that disaggregated bribe recipients showed that 59% of respondents paid bribes to lawyers, 5% to judges, and 30% to court officials for speedy and favorable judgments. The pendency of cases, collusion between lawyers of the defense and prosecution, manipulation of an opaque justice system by court officials, and the political influence in appointments of lower court judges have created a toxic justice system at the lower levels .
  • Corruption in higher courts: The pervasiveness of corruption throughout the lower courts is closely connected to another problem. In a judicial system like India’s, where higher court judges are selected from the ranks of lower court judges and lawyers, there is always a possibility of corrupt judges making it to higher courts. This is especially likely when, as in India, seniority becomes the primary ‘de facto’ criterion for promotion. Once judges have been appointed to higher courts, they can use their expansive ”contempt of court” powers to suppress allegations of corruption. Indeed, the Indian judiciary’s use of contempt of court proceedings against its detractors is often blamed for reducing to a sullen whisper what should be a democratic debate on judicial corruption. For instance, those who accused the former CJIs of corruption are now battling contempt of court proceedings.
  • Cumbersome impeachment proceedings. Even when there is overwhelming evidence against corrupt judges, a cumbersome impeachment process impedes their removal. Under Indian law, either 100 members of the Lower House or 50 members of the Upper House have to submit a signed complaint that is then investigated by a three-member committee comprising two judges and a jurist; if approved, the matter is debated in both Houses, and must be completed within a single session, or else the whole process must begin again in a subsequent session. It is therefore not difficult to see why the country has so far not seen a single successful judicial impeachment. Since independence, only three judges have ever faced impeachment, all three for misappropriating public funds or accumulating disproportionate wealth. Of those three, in one case the impeachment motion failed, and in the other two , the judges resigned before the motion could go through. In the two latest impeachment efforts in 2014 and 2015, one failed to gather momentum and the fate of the other remains uncertain.
  • Excessive delay: India has the world’s largest backlog of cases, at nearly 30 million. The time between filing and final disposition in extreme cases can be up to 20 years in civil cases and 30 years in criminal cases. A weak infrastructure, chronic judicial vacancies, manual processes, a weak law and order enforcement system, prolonged trials and delayed judgments have been major contributors to corruption at all levels of judiciary. Conscious of the chronic delays, citizens feel compelled to bribe at all stages to hasten the trial process. Worse, the opportunities for illicit gain created by the delays create perverse incentives to keep the judicial system inefficient.

justice Markandey Katju (retd), a former judge of the Supreme Court (SC), claimed that 50% of the higher judiciary consisting of SC and high court judges was corrupt. Katju, a former chairman of the Press Council of India, was addressing lawyers at the Punjab and Haryana high court during a function organised by the Lawyers for Democracy, a young lawyers’ group, to mark Shaheed Bhagat Singh’s birth anniversary.“My assessment is that 50% of the higher judiciary has become corrupt,” Katju said, while claiming that he had got a dossier on Chief Justice of India HL Dattu’s alleged properties and given it to then law minister Ravi Shankar Prasad and others, but to no avail.

“I was targeted by former chief justice RM Lodha for my views. Let it all be investigated. SC judges are annoyed. But I am not bothered…,” Katju said. He also slammed the trend of judges and their relatives practicing in the same court.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

Two lower court judges, who were suspended in August on charges of taking money to settle cases during their posting in Vapi court in 2014, have been arrested by the vigilance cell of the Gujarat High Court under Prevention of Corruption Act. Judges A D Acharya and P D Inamdar, who were caught on camera allegedly discussing about settlement of money to pass favourable orders, were on Friday sent to 14 days judicial custody by a Valsad court.According to Registrar General of the High Court B N Karia, the vigilance cell investigated the case and filed an FIR in the case of alleged corruption.Karia said they have been produced in a Valsad court and the Vigilance Department of the High Court has also initiated process of the case. According to sources in the High Court, the two arrested judges were[9] kept in the Gujarat High Court building on Wednesday and were produced before a Valsad district court on Thursday.The two judges on Friday were sent to the judicial custody in Navsari sub-jail jail by Valsad district court judge M M Mansuri after they unsuccessfully moved a bail plea before the court.

 

.In the recording, they were allegedly found talking to lawyers on phone and in person about dealing and negotiating the amounts to give favourable orders. Having received the complaint, the HC Vigilance Cell began the probe on the issue and later booked the judges under Prevention of Corruption Act and for alleged forgery of court records and passing of forged documents as genuine.

among a list of 16 prepared by Bhushan—comprising Justices Ranganath Mishra, K N Singh, M H Kania, L M Sharma, M N Venkatachalliah, A M Ahmadi, J S Verma, M M Punchhi, A S Anand, S P Bharucha, B N Kirpal, G B Patnaik, Rajendra Babu, R C Lahoti, V N Khare and Y K Sabharwal. Terming eight among the list as "definitely corrupt", Bhushan put their in the name of names in a sealed cover and submitted it to the Supreme Court and virtually dared it to open it and read out the contents. He said of the 16 on his list, "six were definitely honest and about the remaining two, a definite opinion cannot be expressed whether they were honest orcorrupt". The veteran lawyer, who became famous by successfully arguing for setting aside the election of Indira Gandhi in 1975, triggering a chain of events leading to imposition of Emergency, resorted to the dramatic action in solidarity with his son, lawyer Prashant Bhushan, who is facing contempt charges for accusing current CJI S H Kapadia and his predecessors of misconduct. "Make me a party along with Prashant Bhushan," requested Bhushan Sr, who was law minister in the post-Emergency Morarji Desai cabinet, as he challenged the SC to send him to jail for contempt. Bhushan's challenge to the SC can put the apex court in a bind. It may be constrained not to ignore the provocation lest it start a trend. The option of punishing the Bhushans, however, carries the risk of putting the father-son duo on a pedestal, and training the spotlight on their allegations when the issue of judicial corruption finds ready resonance with an expanding constituency. Of all the protests against alleged judicial corruption, the Bhushans's is easily the most breathtaking, and will play well with the gallery. Bhushan sought to raise for judiciary the cost of any punishment to him, by saying that he was ready to face the consequences. "The applicant will consider it a great honour to spend time in jail for making an effort to get for the people of India an honest and clean judiciary," he said. In his application, the former law minister spoke of both the growing corruption in judiciary as well as the tendency to sweep it under the carpet protecting judiciary'sreputation.

A defiant Bhushan claimed that two former CJIs were among the sources of his information on corruption among their peers. "In fact, two former CJIs had personally told the applicant while they were in office that their immediate predecessor and immediate successor were corrupt judges.[10] The names of these four CJIs are included in the list of corrupt CJIs," [11]Bhushan said. "Unless the level of corruption in the judiciary is exposed and brought in the public domain, the institutions of governance cannot be activated to take effective measures to eliminate the evil," he added.
"It is a common perception that whenever such efforts are made by anyone, the judiciary tries to target him by the use of the power to contempt. It is the reputation of the judge which is his shield against any malicious and false allegations against him. He does not need the power of contempt to protect his reputation and credibility," Bhushan further said.

One of the most frequently used words in India, corruption signifies a range of things. In 2005, Transparency International and Delhi based Centre for Media Studies, a research firm, undertook the India Corruption Study. The survey covered 14,405 respondents over 20 states and included interviews with service providers and users (of these services). The results, published the same year said Indians pay out around Rs 21,068 crore as bribes while availing one of 11 public services. While some of the results of the survey were published, many of the details were not. The study, however, remains the most recent and the most comprehensive report on corruption in India. Apart from calculating the extent of corruption, in Rs crore, it explain the magnitude of problem.

 

Courting Corruption

The sheer number of cases pending in the Indian judicial system (26 million at last count) says it all. Given that, and the number of judges across various states (per lakh of population), the system is rife with delays and inefficiencies -- ideal conditions for middlemen to step in. In the year preceding the survey, 59% of respondents paid bribes to lawyers, 5% to judges, and 30% to court officials.

1. Inaccesibility

The judicial system is highly dilatory, expensive, and beyond the reach of the common man. Ordinary citizens find it hard to seek redress, as litigation is expensive and extra money is often required to oil the wheels of the system

2. Misuse of power

There are instances of Metropolitan Magistrates issuing bailable arrest warrants against individuals of whose identitites he has no idea, in return for an inducement. Some time back, a Metropolitan Magistrate in Ahmedabad issued bailable arrest warrants against the President of India in return for an inducement of Rs 40,000.

In some cases, judges offer a favour in exchange for personal gain or favours. In Rajasthan, some time back, there were reports of a judge who offered judicial favour in exchange for s*xual favours from a litigant. Some of these instances have been reported by the media, but no action has resulted.

Today, under existing rules, any person making any allegation of corruption or other things against a sitting judge can be charged and punished for contempt of court. This is a deterrent against more such instances coming to light.

3. A difficult impeachment process

The Supreme Court of India has ruled that no first information report (FIR) can be registered against a judge, nor, a criminal investigation initiated without prior approval of the Chief Justice of the Supreme Court. Once appointed, a judge of the High Court or Supreme Court cannot be sacked except by a complicated impeachment process, done by members of the Lok Sabha and the Rajya Sabha, the two houses of Indian parliament. Their immunity is reinforced by the fact that the procedure isn’t just cumbersome but also susceptible to political influence. In the 1990s, when the Congress was in power, a motion seeking to impeach Justice V Ramaswami could not be passed by parliament as Congress members of parliament abstained from voting. There have been no other attempts at impeachment in India.

4. Slow and inefficient

Many cases drag on for years. SAn oft cited excuse is the lack of staff, but the judicial process itself is unnecessarily complicated and inefficient, making cases drag on for a long time. Bribes are sometimes ought to davance the judgement or bend it. At last count, some 26 million cases were pending in Indian courts.[12]

Why People Pay Bribes

1. Favourable judgement

Recent media reports have shown that it is possible to secure a favourable judegement in a lower court by bribing the judiciary, although the situation radically improves when it comes to the higher courts.

2. Speeding up judgement

There is a huge backlog of cases in Indian courts which results in delayed judgements. It is quite common for a case to drag on for years. People often have to pay bribes to speed up the process.

3. Other activities

A llot of non case related work also falls under the purview of the judiciary. This includes the issual of affidavits, registrations, etc. People often pay bribes to get this work done by a middleman.

4. Obtaining bail

The judge has a lot of discretion in issuing bail; the guidelines governing this are fairly basic. It is possible to secure bail by influencing the judge in some cases.

5. Manipulating witnesses

As some recent high-profile cases have shown, witnesses are manipulated through money or force into giving favourable testimony.

Suggested Solutions

As with many other issues facing India, the problem of judicial corruption festers not for want of solutions but for lack of will. Several reform commissions, senior judges, and eminent jurists have laid out detailed proposals for reforming the system from the ground up. Some of the key suggestions include improvements to contempt of court and impeachment proceedings, improvement of judicial infrastructure, enforcing integrity codes for judges and lawyers, extending the Right to Information Act to cover the judiciary, opening judicial vacancies to qualified legal scholars, using alternative dispute resolution mechanisms, and introduction of modern technology. However, reforms have been intolerably slow, with the judiciary and executive blaming each other for the delay.

Yet the recent executive-judicial response to the NJAC crisis has shown a promising way forward: Even as it rejected the NJAC, the Supreme Court acknowledged the flaws in the current appointment system and tasked the government to gather public suggestions for its improvement. Within two weeks, more than 3000 citizens sent in suggestions for improving the quality and accountability of India’s judicial appointment process. It seems that the judiciary’s concerns of another executive incursion and the executive’s determination to save face after the NJAC debacle have forced both parties to work together for swift implementation of these suggestions. A similar openness to public suggestions for addressing the key causes of judicial corruption (and their swift implementation) seems to be the best way forward to arrest the perceived slide in the judiciary’s accountability and restore its image of integrity, impartiality, and fairness in the eyes of citizens.[13] Unless the level of corruption in the judiciary is exposed and brought in the public domain, the institutions of governance cannot be activated to take effective measures to eliminate the evil,"

 

 

                                                                                J S Rajawat,Advocate

                                                                     Retd. Dy. Director,Prosecution

 

 

 

 



 

 

 

1 TOI  12 Feb 2017 ,Jaipur edition

[2] TOI 22 Feb 2017 Jaipur edition

[3] TOI 22Feb 2017 Jaipur edition

[4] TOI 12Feb 2017 Jaipur edition

[5] TOI  14Feb 2017 Jaipur edition

[6] reports Dhananjay Mahapatra.

[7] TOI 14  Feb 2017  Jaipur edition

[8] Article by Nayana Renukumar

[9] Dhananjay Mahapatra | TNN | Sep 17, 2010, 01.16 AM IST

Former law minister Shanti Bhushan  created a sensation in the Supreme Court when he moved an application accusing eight former Chief Justices of India of "corruption", and dared the court to send

[10] Former Law Minister Shantibhushan Sep17,2010,01.16 AM IST

 

[11] Former Law Minister Shantibhushan Sep17,2010,01.16 AM IST

[12] THU, May 03,2007 10.24 PM IST

[13] Article by Nayana Renukumar


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Justice karnan has raised objection against the treatment on 31 March 2017 ( "when the SC's bench asked for his mental health in an open court")  and the withdrawn judicial powers without even proof of any allegation against him and the arrest warrant issued against the high court Judge, Is this the way the person should be treated when he has raised a voice against corruption and caste based discriminations?

Actually, the corruption has become the system itself so who so ever will raise voice would be observed as "mentally not well". It is quite easier to declare one person as controversial when he is all alone in the crowd. This is how the corruption and caste-based discrimination are dealt in the system and society. 

A judge in family court ( Muzaffarnagar) solved 6065 in 327 working days (20 judgment/day) and 927 rehabilitation of couple again, then why others can not solve even 05 judgment /day? The pendency of cases is not only rooted to the shortage in the number of judges, it is also related to corrupt practices of our system. what accountability is being decided by a judge regarding his job and what performance evaluation system is given to them?

This is really wake up time for Judiciary to enact and make transparent process and strong systems to remove corruption from the system. 

 
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